Analysis of effect of constitution and function

 

 

Analysis of effect of constitution and function

Outline

A,The background of the ConstitutionThe Constitution in what historical conditions?

Two, the functions of the Constitution

Three, constitutional role

Why four, modern countries need constitution

Five of the constitution, function and the role of the further understanding of the general

Six, summary

A,The background of the ConstitutionThe Constitution in what historical conditions?

Although the "constitution" of the word has a long history, but as the modern significance of the fundamental law of the state's constitution, is established with the bourgeois democratic revolution, the bourgeois state power and the establishment of bourgeois democracy and the emergence of.[1](1) the modern western countries constitutions is not accidental, but there are economic, political, social and cultural aspects of the deep reasons:

A, western countries have constitution, is the inevitable result of the development of capitalist market economy. The market economy is the free, equal, competitive economy, to ensure the smooth development of economy must rely on the rule of law, market economy is the constitution of the soil.

Two, in the western countries constitution is produced in the process of destroying the feudal autocratic system, establish bourgeois democratic system. To establish the specific performance is the bourgeois democratic political. Establish bourgeois democratic politics, laid a solid political foundation for the formation of constitution. And provides the system and the law of constitution in turn for the consolidation and development of democracy.

Three, the separation of the political state and civil society, laid the social foundation for the emergence and development of the constitution. The bourgeois constitution in the form of law after the victory of the revolution, to establish the national system separation of powers by the constitution, is said to be the separation of the political state and civil society in the law, its purpose is to prevent the state power enforcement and intervention on social and economic life, in order to protect the market economy and democratic politics establishment and perfection.

Four, the modern western bourgeois enlightenment, laid the ideological and theoretical foundation for the emergence and development of constitution. Mainly Rock, Montesquieu, Rousseau and other enlightenment thinkers of the separation of powers theory and social contract theory and the sovereignty of the people thought.[II]2.

Conditions and background from the above we discussed constitution produce, know only under certain conditions, can cause the constitution. In the pre capitalist society because they do not have the economic, political, social and cultural aspects of the corresponding conditions, so that it does not produce the modern sense of the constitution.

So, the constitution is not the beginning, also is not in the human society has some, it is not like other law, has very strong applicability of specific. Constitution is produced in the bourgeois revolution in the struggle, is produced in the feudal society of autocratic rule and the class struggle, is produced in the collision of various thoughts, especially excited in the European Enlightenment thought of, is mainly produced in a right awareness promotion the. Each country has different backgrounds, but the same point is in order to protect people's rights consciousness under the. In this great thought, in particular, has an important influence the thought, Rousseau's human rights thought, thought of people's sovereignty, social contract theory, there are other thinkers such as liberalism. In a word, the reason why, simply because people have been aware of their own natural and unalienable rights. So the biggest role of constitution is to protect the rights of the people. This is the final point of constitutional design, the system design of it, no not around this point. As the thought of separation of the three powers, the powers are divided into legislative power, judicial power, administrative power, have the power to restrict power, inquire deeply into the starting point is to prevent the government power to infringe on the interests of the people. If not eliminate also a reduction in. Constitutional democracy seems to guarantee the people be in power power, but the essence behind or in order to protect the interests of the people, democracy is to give people a means of supervision, can replace the unqualified people elected ruler.

Two, the functions of the Constitution

The constitution of the function refers to the function and role is determined by the essence of constitution of the constitution, which has tight relation with the value of constitution and constitutional role. Generally speaking, its function mainly in the following aspects:

A, confirming function

     First performance for confirmation of national fundamental questions. Mainly for the:

Confirmation of 1, on national institutions, including the country's political system, economic system, cultural system.

2, the state power to confirm, that the constitution as the institutionalization and legalization of democracy, the constitution, and affirms the principle of people's sovereignty, national regulations all power belongs to the people.

3, the rights of citizens to confirm. Constitutional recognition of basic human rights, provides the fundamental law basis for the protection of human rights.

4, the operation rules of national power to confirm. It can clear the organs of state authority, prevent the abuse of power, the protection of civil rights.

Two, support the right functionBoth guarantee the rights of citizens, including ensure effective operation of state power.

Three, limiting function

One of the core value of the constitution is "limited government", namely the control and restriction of the powers of the state. Its basic spirit, it is by restricting the state power to protect the citizen's rights and freedoms.

Four, coordination functionThe function of the constitution is mainly by the constitution to coordinate the various classes and strata of interest, so that they can live together in peace.[3]3.

Three, constitutional role

The so-called constitutional role is to implement the Constitution and effect in social life, is a kind of external function. The constitution to play a huge role, must have certain conditions: first, democratic constitution and the Constitution can be widely observed is the basic premise of fundamental law constitution play role in the society; in addition, also asked the constitutional norms having deterministic force, binding force and execution force. With the above conditions often has the function of constitution:
(1) regime in the organization of state of the role of the first constitution: task is the organization of state. The way to the separation of powers and checks and balances including is base generated system of separation of the three powers, as well as with democratic centralism as the basis for creating the system of people's congress. No matter what the form of organization, must comply with the Constitution and the principle of purposiveness.
(2) in the protection of civil rights aspects: create the Constitution's objective is to maximize the common interests of all members of society, promote the common. The Constitution in order to protect the ultimate objective, is based on three principles: one is the interests of the state, the collective interests and personal interests of coordination principle; two is to protect the basic rights of citizens of principle, of which the most important is the basic human rights; the three is consistent with the principle of rights and obligations. The principle is the requirement for all members of society, and also the requirement of the state organs to exercise state power in accordance with the provisions of the constitution.
　 (3) in the maintenance of the basic system of the state and social role: the basic system of the state and society is the implementation of the constitution of the environment and conditions, not a good environment and conditions, the constitution as the fundamental law do not reflect the legal status. Therefore, many countries have focused on strengthening the provisions of the basic system of the state and society in the constitution; the current constitution of our country the system construction and the exercise of power and achieve together, make the implementation reflects the will of the people and the interests of the people is not only the constitution safeguard, and double protection necessary to implement the good social and environmental conditions.

(4) in the implementation of the rule of law: the rule of law, the role of the constitution is not not essential policy or programme, the constitution is the basic element of rule of law is a core element of the rule of law and the existence of the. On the one hand, the constitution as the core of the legal system, is the premise and the change of all legal norms produce, existence; on the other hand, based on the Constitution and constitutionalism, in which the operation itself is the rule of law. So, say left without a single success of constitution is the rule of law.

Why four, modern countries need constitution

In today's society, Is it right? All countries have the Constitution? Democracy and the rule of law in today's society is the trend of historical development, all countries, regardless of the old democracy, or the new nation was established under the banner of democracy and the rule of law will invariably flags to maintain their own rule, and the symbol of democracy and the rule of law is the largest to have a constitution, based on this, all countries in the world, should have a copy of their constitution, at least there is meaning a form of constitution, whether it is true or false democracy, democracy will have a constitution as a cover. As for the Constitution in this country can play a role in how much is another matter. The question now is why all nations must have the Constitution? Truly realize the rule of law is to have the constitution is to protect the interests of the people, restrict the power of country. And those countries with the constitution as a cover, which did not realize the rule of law, is still the rule country, constitution is just a decoration. Although the Constitution in those countries did not play its due role, but an indispensable ornament.

    Now discuss the Constitution can really play a role in a country's situation. Why do we need the Constitution in this country? To answer this question, must first ask countries what. Answers are as follows: first, the state is to maintain the survival of the people in the country, so to guarantee their safety. So a country the ngs and transport business, at the same time and the army and police, but in maintaining the safety and life of the people. Second, people so to countries in the protection of people's freedom. Countries should make the conflict with the interests of people with reasons, there must be a method to guarantee the freedoms and rights of people, then to make them with each other. Moreover, the freedom of the people, not limited to the material aspects of thought and speech, we must also have the guarantee, in short, to make the people can free development. Third, create a legal order. It is to try to make the society of all behavior law. Create a good social environment. But the Constitution in simple terms, is required to exercise public power to people's body, and the legislative, administrative, judicial mutual relationship. Furthermore, the constitution is a document, the provisions of the government how power distribution in various organs, in order to protect the people's safety and people's freedom to.[4](4) the country to successfully play the function and the interests of the people are well protected against normative role assaults cannot do without the constitution, no specification of the constitution, or the government to show restraint, in order to protect the interests of the people, the government attempt nothing and accomplish nothing, cannot work smoothly, eventually the people's interests. Or, as the government actively, but can not go against the interests of the people, it was unavoidable. In fact, in the absence of constitutional constraints, the latter is most likely to occur. Because the Constitution's role is to protect the interests of the people, to limit the power of the government, therefore, a country under the rule of law would be impossible without the constitution, or: not a constitutional country would not be a country under the rule of law.

Modern countries need constitution is the problem what stand point to ask? Because the constitution the most profitable apparently ordinary citizens of a country. The constitution is to limit the rulers, the rulers, because the restriction of the constitution, they lost a large part of the power, the size of their power is obviously an obstacle. If the national power, democracy is not necessarily authoritarian countries more powerful than. The most typical example is the Nazi Germany, before Hitler in Germany in a worrying, unbearable chaos, when Hitler took office, dictatorship, Germany quickly restored order, and the national strength has been an unprecedented increase. German power in democratic countries on the circumstances surrounding. For example in Nazi Germany is mainly to explain the democracy and the rule of law not the biggest beneficiaries from government and the state, but the state of ordinary citizens. But the biggest beneficiary of tyranny is the supreme ruler and the national government, because the distribution of national wealth they hold the power, under no constitutional constraints, can be their own convenience for their own profit. Although democratic countries sometimes slower than dictatorships running efficiency, this is one of the democratic. But from a long-term point of view this is a price worth paying. Because people will because the authoritarian dictatorship to pay a higher price, one of the people is the example of Nazi germany. On the other hand, the rule of man the country, namely the authoritarian countries, strong fast fading fast. Nazi Germany only existed for 12 years have failed. In a constitutional norms of the country under the rule of law, powerful slow, slow fading, USA is typical. The America society in the constitutional norms of everything in good order and well arranged running. Not because of a strong character on stage and significant changes have occurred, all USA society are effective in the legal norms of operation. The constitutional state there is a kind of stability, is the rule of the stability. America small weak countries after years of accumulation, slowly become a super power in the world. And will not suddenly on the decline, which is characteristic of decision rule. Therefore, constitutionalism and rule of law in the long run, not only conducive to the interests of citizens of a country's current, but also good for a national citizen lasting happiness.

     To make a long story short, modern countries need constitution, one is to protect people's current interests are not violated; two is to have a long and happy to protect the people, the interests of future generations. All the starting point is to protect the interests of the people. Of course, the false democracy, constitution is also indispensable ornament.

Five of the constitution, function and the role of the further understanding of the general

From the historical point of view, we know that the constitution is produced in the feudal autocratic rule and in the struggle. The autocratic rule of the feudal and democracy and the rule of law is constitutional society, enjoyed the biggest difference is the people's rights and freedom. The autocratic society, the oppressed people's role, no fundamental rights and freedoms, and in the rule of law and constitutional society of modern people, plays a master role, rights and freedoms of the people has greatly expanded, and the basic guarantee, so, the constitution since appear on the stage of history since is the people's rights and freedoms protector posture, but also to the power of the government regulation of the identity of the person. So, Lenin said: "the constitution is a piece of paper with the rights of the people. The constitution from the perspective of the content, the Constitution not only have provisions to protect people's rights and freedoms, there are provisions on state organs and their division of powers. On the surface it seems these provisions and protecting the rights of the people, but in the deep level reason inside, still contains a final point to protect the rights of the people. The reason for the state organ and its detailed division of power is to clear their power, let them know what can be, what can not be more clear, so as to protect the rights of the people.

Every country has its own constitution, but not in every state constitution can play to protect the interests of the people, to limit the powers of government role. In many countries the constitution is just a Cypriot tongue rulers decorations. In this state, the Constitution did not what role, is only some words written on paper, is false constitution. In this China history is also appeared in such a situation. Since the reform and modification of laws, appeared several no practical use of the constitution. Such as the "imperial constitution outline", it is just a fool people. In the reign of the northern government, the Constitution also always appear. Other countries in the world is not uncommon, especially in poorer Africa countries, such a constitution to fool people political game is more and more become inured to the unusual. Even in today's China, although the top has repeatedly stressed that the dignity of the constitution, but in reality are often put constitutional put it away unheeded, do not give full play to the constitution should be in the future, this is we should pay more attention to the problem. In a country, if the constitution is the lack of respect, the people of this country's rights are not well protected. In addition, in our country still lack the Constitution can be a very good implementation of complementary measures, such as no effective judicial review organ.

The inevitable result of the constitution was able to produce but also the development of human society. Enhance human rights awareness, the development of social economy and culture are the reasons.

Many countries and did not have a written text called constitution, namely the meaning of the form constitution. But certainly there are constitutional documents with content of the constitution, which is the essence of the constitution. Whether it is the meaning of the form of the constitution, or the essence of the constitution, they play a role are the same, that is to protect the interests of the people.

The constitution is just on the social life aspects of regulation, because of the extensive constitution determines the constitution could not for specific provisions on specific things in the real world, it only provides the most basic principles of various social rules should comply with regulations, specific execution rule also requires departments method the. Can say, the Constitution provides the basic framework of a society, how to populate the is department law. However, if there is no frame, Department of law may be beyond justice, moral boundary, set against the interests of the people of the law. So, the constitution plays the role of guarding the people's rights in this, because of the constitution, the people's right to have a reliable guarantee. So, in order to protect the interests of the people, a democracy must have a constitution.

Six, summary

We know that we are the people's democratic dictatorship socialist country, which determines the nature of our constitution and the capitalist countries of the constitution is very different. However, identical with them is the embodiment of our constitution and the people's interests, but also to protect the people's interests as the starting point. Generally, we can better reflect the constitution, and to protect the interests of all Chinese people, the capitalist constitution only embodies the capitalist interests, is a capitalist society members of the small part of the interests of the. The constitution of our common with other countries in the world of the constitution, also have their own characteristics. As the characteristics of socialism, the people's democratic dictatorship and the characteristics of the.

Summarize the above point of view, is that the constitution is not the historical beginning, the constitution is only produced in the human social economic, cultural, ideological development to a certain stage. It does not arise spontaneously, generation of bourgeois and feudal autocratic rule in the struggle in the. But the constitution is to protect members of the public, the starting point is the largest maximum rights and freedom. From the aspects of limitation may encroach upon the rights of citizens the power of the government. Although the constitution is not all provisions are provisions on civil rights, and other provisions, but in essence, the final point behind are the protection of citizens' rights and freedom. Of course, this is only limited to the Constitution can really play a role of the state.

The emergence of constitution, the development of human society is the significant progress, a great liberation is the human, the human out once more oppressive environment, become the masters of their own, to promote the development of the people. The constitution is indispensable to democracy and the rule of law and political. The Constitution and democracy and the rule of law and political interdependence.

 

References: [1] Yin Xiaohu constitutional essentialsPeking University press in 2005 July First Edition

         [2] Zhang Junmai constitutional road Tsinghua University press in 2006 August First Edition

         [3] Zheng Xianjun basic rights of China democratic legal publishing house in 2007 February First Edition